철강산업에서의 전산(MES)시스템을 통한 작업수행과 원청(도급업체)의 지시권 — 대상판결: 광주고등법원 2016. 8. 17. 선고 2013나1128 판결을 중심으로 —

This paper analyzes the criterion objectively that encloses the distinction between a contract for work and a temporary agency contract. Afterwards, it studies the normative meaning of subject case that ruled the main grounds for an argument as a temporary agency contract, which are the relevance of facts not to be handled from the traditional courts under which the case interpreted the work performance by MES (Manufacturing Execution System) system as a significant command and order, regarded as an element of a temporary agency contract in the concrete decision and considered the work of subcontractor composing a part of the process in the case of continuous process as an illegal temporary agency contract due to the joint work with contractor's employees although the case accepts the general theory of the Supreme Court. In other words, this paper organizes the relevance of facts and ruling contents of the subject case after which it examines the attitude of the case regarding each normative issue, especially the work performance through the MES system and the right of instruction of the contractor. The MES system as adopted generally from the modern manufacturing industry does not have the main purpose to command and order subcontractor's employees, but has the main purpose to deliver the information in order to manage the products effectively. Therefore, recognizing the work performance by MES as a significant command and order, regarded as an element of a temporary agency contract is the interpretation resulting from understanding the MES system wrongfully. Again for emphasis, the MES system has the main purpose to record and manage all of the information needed by ordering a temporary agency work, inspecting a completed work, sharing working information, and proceeding the work effectively so that it is not seen as the command and order under the Act on the Protection, etc. of the Temporary Agency Workers. Recently, when considered as the reality managing the products through the MES system mainly in the big manufacturing industry, if the court stands the attitude of the subject case without considering the characteristics of a large industry, as a matter of fact, the usage of a temporary agency work in the manufacturing industry in Korea will be prohibited and disappeared. In this regard, the judgment in the first trial, 「That the defendant ordered the instruction of crain work to the plaintiffs through the computation apparatus is seen as the reasonable contents of the work on characteristic assigned to subcontractors in this case so that the defendant is not be seen to exercise the right of direction and supervision at work」 is to understand the characteristics of the steel industry based on manufacturing fairly.